Cox v. Zucker

• Citation: 102 S.E.2d 580,214 Ga. 44
• Decision Date: 07 March 1958
• Docket Number: No. 19969,19969
• Parties: James E. COX v. John Edmund ZUCKER et al.
• Court: Georgia Supreme Court

Page 580

102 S.E.2d 580

214 Ga. 44

James E. COX v. John Edmund ZUCKER et al.

No. 19969.

Supreme Court of Georgia.

March 7, 1958.

Rehearing Denied March 21, 1958.

Syllabus by the Court

1. A prerequisite for an interlocutory judgment granting or denying an injunction to affect or control the case on final trial, even when it is based upon pure law, is an affirmance thereof by the Supreme Court.

2. The record showing that the intervenor in good faith acquired title to an undivided one-half interest in the land involved after the execution of the defendant's deed conveying an easement, the defendant, if otherwise entitled to have his deed reformed because of mutual mistake, must be denied that relief because it would adversely affect the intervenor, an innocent purchaser.

3. To constitute an irrevocable parol license to use the easement, it is essential that the owner, and this means all the owners, must give such parol consent to use it, and the licensee must have expended money in the execution of the license. The claim to such irrevocable license here is fatally defective because (1) it was not given or consented to by a cotenant, and (2) the improvement was on the property of the licensee.

4. Title to the easement was not acquired by mere use for seven years; and since prescription would begin to run only from the date of such improvement thereon as would constitute notice of an adverse claim, and seven years have not elapsed since the improvement claimed, no prescriptive right was shown.

5. While an intervenor takes a case as he finds it, and if the petition alleges no ground for the relief sought, its dismissal on that ground carries the intervention out of court with it; yet where, as here, the petition alleges good grounds but the evidence supports the defendant's plea of estoppel against the petitioner, but fails to show estoppel against the intervenor, the intervenor will be granted the relief to which the evidence shows her entitled even though the petitioner is barred by estoppel. While the evidence is sufficient to estop Zucker who had notice and assisted in erecting the defendant's building, it is wholly lacking in notice to the other cotenant, Mrs. Robertson, and hence is insufficient to estop her.

John Edmund Zucker on January 26, 1955, filed in Fulton Superior Court a petition seeking an interlocutory and a permanent injunction against James E. Cox to prevent the use of a joint easement between the parties as a means of access to other property owned by the defendant. Thereafter, on October 24, 1955, Mrs. Bobbie C. Robertson filed and had allowed her intervention as a party plaintiff in which she alleges that, on July 5, 1947, she had purchased a one-half undivided interest in the land over which the easement passed, and she adopted the petition and prayers of the plaintiff.

The application for interlocutory injunction was heard on February 8, 1955. After hearing much evidence the trial judge wrote a lengthy opinion in which he reached numerous conclusions, and rendered judgment denying the application for injunction in the following words: 'It appearing that under all circumstances it would be inequitable to preserve the present status pending a final trial of the case, it is therefore ordered that the interlocutory injunction sought by the plaintiff is denied.' There was no exception to this judgment.

On October 19 the case came on regularly for final trial, and after the introduction of much evidence a verdict was directed in favor of the plaintiffs. And a judgment permanently enjoining the defendant was entered on that verdict. Thereafter the defendant filed a motion for new trial as amended which was heard and denied, and he excepts.

There was evidence to show that plaintiff Zucker sold defendant a tract of land in 1946, and in the deed of conveyance also conveyed a permanent easement to a right of way 15 feet in width for ingress and egress to the property conveyed. The deed recited that the easement was to be a joint easement for the use benefit of the property conveyed as well as the property owned by the grantor on the north. Each party agreed to use the easement so as not to unnecessarily interfere with its use by the other. The intervenor alleges that Terrell C. Wesley, Jr., conveyed an undivided one-half interest in the land to the north of the easement as well as the easement to the intervenor, Mrs. Bobbie C. Robertson, on July 5, 1947.

Defendant Cox purchased, in 1948, the National Toddle House Corporation land abutting the easement on the eastern end thereof and erected a building thereon at a cost of approximately $38,000. The defendant has since 1946 almost continually placed property thereon, carrying it to and from that land over the easement here involved. This easement is the only way by which the building can be reached, and Zucker watched and assisted in its construction, receiving pay therefor from Cox. The structure of the building shows a loading platform adjoining the easement, indicating unmistakably an intention to use the easement in connection therewith. At no time during the construction of the building did either the plaintiff or the intervenor make any objection. And it was only after the defendant had incurred the expense of constructing the building that either of them made objection to the use of the easement for ingress and egress to and from the building.

Newell Edenfield, Allen Post, Atlanta, for plaintiff in error.

Robert W. Spears, Wm. G. Grant, James C. Grizzard, Atlanta, for defendants in error.

DUCKWORTH, Chief Justice.

1. There is an enormous amount of space, both in the bill of exceptions and in the briefs of counsel, devoted to the presentation and argument as to whether or not the judgment denying a prayer for an interlocutory injunction, unexcepted to, became the law of the case, controlling or affecting the final judgment. In City of Atlanta v. First Methodist Church, 83 Ga. 448, 450, 10 S.E. 231, 232, this court said: 'It has been said that the decision of the superior court upon an interlocutory decree by the judge of that court, is not final, and is not conclusive between the parties when the case comes up for final hearing; but when the decision of the inferior tribunal in an interlocutory proceeding is brought to this court, and the whole case is before this court as to whether, under the law, an injunction or receiver or anything of that sort should be granted or refused, and this court determines, upon the whole law of the case, that the injunction shall be granted or refused, that is a final adjudication of the case. It is not interlocutory as to this court. It is interlocutory as to the superior court, because the judge of that court may or may not grant an injunction, according to his discretion. The facts may be in controversy, and various things may occur which would make it proper to award or refuse it in the first instance.' That case was followed or adhered to in Ingram v. Trustees of Mercer University, 102 Ga. 226, 29 S.E. 273; Atlanta Trust & Banking Co. v. Nelms, 119 Ga. 630, 46 S.E. 851; Collins v. Carr, 116 Ga. 39, 42 S.E. 373; Georgia Ry. & Power Co. v. Town of Decatur, 153 Ga. 329, 111 S.E. 911; First Nat. Bank of Dublin v. Colonial Fire Underwriters' Ins. Co., 160 Ga. 166, 127 S.E. 455; City of Atlanta v. Smith, 165 Ga. 146, 140 S.E. 369; Elyea, Inc., v. Cenker, 184 Ga. 179, 190 S.E. 585; Dollar v. Fred W. Amend Co., 189 Ga. 654, 7 S.E.2d 258. In each and every one of these cases there was involved an interlocutory judgment that had been reviewed by the Supreme Court, and in each it was clearly shown that it was the rulings of the Supreme. Court that constituted the law of the case. In Collins v. Carr, 116 Ga. 39, 42 S.E. 373. supra, it is said: 'If the judgment [one affirmed by the Supreme Court] is not based upon pure questions of law but upon questions of evidence or of law and evidence, it is not binding or controlling upon the final hearing, unless the proof be the same as at the interlocutory hearing.' It was further said in that opinion with reference to the judgment there that: 'This judgment was, therefore, not binding upon the court or the parties at the final hearing, although affirmed by this court, unless the jury should, from the evidence before them, reach the same conclusion as had been reached by the judge at the interlocutory hearing.' This lastquoted ruling should put forever at rest any doubt, but that the judge's construction of the evidence in no way impairs the jury's right to make its own construction although that construction is entirely different from that of the judge.

To fortify our present ruling that an interlocutory judgment granting or denying an injunction if unexcepted to is not the law of the case other than as to whether or not an interlocutory injunction should be granted, we quote from the decision in Atlanta Trust & Banking Co. v. Nelms, 119 Ga. 630, 46 S.E. 851, supra, as follows: 'A judgment of a trial court refusing an injunction when the same depends entirely upon a question of law is, upon its affirmance by the Supreme Court, while not a final judgment in the case, a final adjudication of such question * * * this rule is however, not applicable unless the judgment is based entirely upon a question of law.' We believe the description of an interlocutory judgment in First Nat. Bank of Dublin v. Colonial Fire Underwriters' Ins. Co., 160 Ga. 166, 127 S.E. 455, 457, supra, aids greatly in understanding why such unexcepted to interlocutory judgments are not binding on the final trial. It is there said: 'A judgment to be the basis of res adjudicata must be final in its nature; and the order appointing a receiver and granting an injunction is wholly provisional, preliminary, preparatory, and looks to a future and final hearing more deliberate, solemn, and complete than the one resulting in such appointment and interlocutory injunction, and, while...